The Cost of Closure
In Arusha, Tanzania, the International Criminal Tribunal for Rwanda reaches the end of its mandate.

The Yale Globalist
Tuesday, 13 October 2009
Alexander Soble and Ali Weiner

Most visitors to Tanzania come to take in the country’s renowned wildlife on safari or to experience traditional Maasai ceremonies. But the steady stream of students, backpackers, and curious travelers who pass daily through the gates of the International Conference Center in Arusha come to observe a very different kind of spectacle: the ongoing trials of the masterminds behind the 1994 Rwandan genocide. A thin sheet of glass separates the accused from the spectators, who, thanks to the simultaneous translation service, can choose to listen to the proceedings in either French or English. When their visit to the International Criminal Tribunal for Rwanda is over, they are guided out of the courtroom by smartly-dressed U.N. employees from a hodgepodge of African countries.

It is difficult to imagine that this sprawling complex of courtrooms, buzzing with lawyers, judges, and witnesses from scores of different countries, will be empty and silent within a year and a half. The convicted will be sent abroad to serve out their sentences; the tourists will no longer stop by the Tribunal on their way to climb nearby Mt. Kilimanjaro; the u.N. employees are already busy looking for their next jobs. But between Rwanda, the country that lost nearly a million lives in a hundred days, and the international court set up to deliver justice in the face of the genocide, a fundamental disagreement remains: What should happen after the Tribunal is gone?

The story of the Rwandan genocide is, by now, well known. In the spring and summer of 1994, Hutu extremists carried out a systematized slaughter of ethnic Tutsis and Hutu moderates. The killings were brutally unsophisticated, carried out with machetes, rocks, and fists. In less than a hundred days, almost a million lives were lost. The genocide was the product of careful top-down planning: A clique of high-placed Hutus within the political and military establishment organized everything from the distribution of weapons to radio broadcasts urging on the killers.

The international community did not intervene to end the genocide, although major western powers did quickly evacuate their own citizens. Actually defeating the genocidal regime was a task left to the Rwandan Patriotic Front (RPF), the mainly Tutsi army which had first invaded Hutu-dominated Rwanda in 1990. After the killings were over, the united Nations established the International Criminal Tribunal for Rwanda (ICTR); it located the Tribunal in the peaceful Tanzanian mountain town of Arusha, out of fear that a Rwanda-based court would deliver RPF-sanctioned revenge instead of impartial justice. Rwanda protested vehemently but eventually had to accept the Arusha location as a fait accompli.

More than a decade later, the attitude of Rwandan officials towards the Tribunal combines grudging acceptance with sharp criticism. “It showed that the international community felt their negligence, felt a sense of remorse,” admitted Alloys Mutabingwa, who served as Rwanda’s representative at the Tribunal. With his tailored suits and American-made SuV, Mutabingwa is unmistakably a member of the multi-national elite that the Tribunal has brought to Arusha. He is a round-faced, serious man who speaks so softly that he is often difficult to hear in a quiet room. But like many Rwandans, Mutabingwa does not hesitate to fiercely reprimand the court for its glacial pace. “I don’t see why there should be a remainder of cases,” he said. “It has been fifteen years.”

The Tribunal has delivered verdicts to only 44 of the 90 high-priority génocidaires that it branded with arrest warrants fifteen years ago. In 1998, the u.N. Security Council called for the Tribunal to complete all trial activities by the end of 2008. That deadline was later pushed back to 2009, and again to December 2010. As the ICTR’s closure date approaches, Rwanda’s government and the Tribunal disagree fiercely about how to manage the trials’ completion. From prisoners to fugitives to archives, Rwanda wants to bring everything the ICTR leaves behind within its own borders. But the international community has other ideas.

Prison Politics

A major source of disagreement involves the undecided fate of those Rwandans convicted by the Tribunal. Seven nations, including Rwanda, have volunteered to host the convicts in their jails but, much to the country’s chagrin, the Tribunal has not transferred a single prisoner to Rwandan jurisdiction. The Rwandan government would much rather see those found guilty behind bars at home, where survivors and perpetrators alike could witness the imprisonment of those individuals who brought so much fear and suffering to their country.

Instead, those convicted are serving their sentences in an unlikely assortment of countries. Mali, for example, hosts fifteen. While the country’s scorching Saharan temperatures may seem ideal for punishing convicted war criminals, conditions for prisoners there seem strangely lenient. “I don’t think they’re complaining at all,” said Cainnech Lussiaa-Berdou, a defense counselor at the Tribunal. “They go shopping and things like that.” Lussiaa-Berdou was surprised to receive a phone call from a convicted client on one such market outing. “He called me from the post office” to tell Lussia-Berdou that he was doing just fine.

In the meantime, other prisoners remain under U.N. watch in Arusha. “It’s like a hotel,” said one security officer familiar with the United Nations Detention Facility in Arusha, Tanzania. Each génocidaire’s room is outfitted with its own computer, carpeting, and cabinet. The food, according to the official, is better than at the u.N. cafeteria at the Tribunal. The prisoners share public exercise and library facilities; they socialize frequently. “They talk to each other,” said the security official. “They’re even like family friends.”

“It’s a slap in the face,” Rwandan Ambassador Mutimura said of the luxurious living conditions at the united Nations Detention Facility. “With the service they are getting, they’re living better than our ministers!” exclaimed one Tanzanian civil servant angrily.

To prove its readiness to host prisoners, Rwanda has built a special new prison in Mpanga, located in the south of the country. The investment might have been in vain. The ICTR must consider more than just prison conditions when deciding where to transfer convicts. “Family members visit the prisoners often, even weekly,” Roland Amoussouga, spokesperson of the ICTR, explained. “In Rwanda, is the security of the family assured? Are they going to be poisoned or killed, beaten or mistreated?” Due to objections like these, the special cells at Mpanga prison remain empty. Instead, Rwanda recently agreed to use them to house convicted war criminals from Sierra Leone.

Location, Location, Location

While Rwanda and the Tribunal wrangle over where prisoners should be held, 13 of the 90 indicted génocidaires have yet to be found. Most are suspected to be hiding in the dense, inaccessible forests of the Democratic Republic of the Congo; others have used wealth and political connections to ensconce themselves in countries like Kenya and Zimbabwe.

Tracking down these fugitives is one of the many responsibilities of Hassan B. Jallow, Chief Prosecutor of the ICTR. A tall, stately man from the Gambia, Jallow’s commanding presence in even a casual meeting suggests that he would be intimidating in a court room. “As a prosecutor, you have to do some law, and you have to do some diplomacy,” he said wryly. One department of Jallow’s office makes the legal case against those accused of genocide, while his investigations team, based in Kigali, is charged with collecting both evidence and fugitives. Genocide suspects have gone to great lengths to try to throw off Jallow’s team. “We recently found a fake tomb in the DR Congo, bearing the name of a fugitive who we know is still on the run,” Jallow said with something of a chuckle.

If these fugitives are captured after the Arusha Tribunal is ends its operations, they will still need to stand trial. “Nobody fixes an appointment with a fugitive,” emphasized Rwandan representative Mutabingwa. “We never know when they will be arrested, so we have to ensure we have the mechanism to try them in place for whenever they are finally found.” The ICTR’s Amoussouga agrees: “These fugitives can never be allowed to escape justice,” he said. “To surrender, to die, or to stay in clandestinity forever: Those will be their only options.”

To Rwandan officials, there is only once acceptable location for the planned residual mechanism. “It is high time the Security Council considered devolving the Tribunal from Arusha to Kigali,” Mutabingwa told the Globalist.

But the u.N. has interests of its own. Adama Dieng, the registrar of the ICTR, favors “a place for the residual mechanism where the U.N. has an office.” He argues that “Nairobi, a U.N. hub, is the best place where one could locate the archives and the residual mechanism.” Moving the trials to a u.N. hub keeps down costs, argued Dieng. “You will already have security officials, IT experts, all types of services in place.”

In addition to these concerns, Dieng and others at the U.N. are uncertain that the indicted would receive a fair trial in Kigali. “There are concerns about the enforcement of sentences, the protection of witnesses.”

Whichever city is chosen as the site of the residual mechanism will likely host the ICTR’s archives, which contain thousands of documents, as well as countless hours of audio and video records. Because of the fugitives that remain at-large, this material is of more than merely historical interest. “Imagine a fugitive is arrested in 10 years’ time,” said Dieng. “The prosecutor may need evidence that’s now confidential.” The U.N. would prefer to house such sensitive evidence in a more neutral location, like Nairobi, rather than Kigali.

Dieng acknowledges that “there will be a need to have some of the archives to be located in Rwanda — some of the material evidence, like Kalashnikovs, machetes, things to be placed in a museum.” And he hoped that “one day,” all the material will be transferred into Rwandan hands. However, Dieng insisted “the archives belong to the U.N., not to the Rwandan people, not to anybody else.” The disagreement over the archives captures the underlying problem facing the ICTR: Rwanda does not accept the U.N.’s role as purveyor of justice for a genocide it did nothing to prevent.

Rwandan Justice

Climbing the broad, steeply sloping streets of Kigali, it is impossible to spot physical traces of the war and genocide that tore Rwanda apart fifteen years ago. The capital city boasts a brand-new mall; its busy internet cafes are frequented by development workers, NGO representatives, and tourists, as well as Rwandans themselves.

Yet Rwanda’s justice system, according to the ICTR, is one sector of the rebuilt country that remains substantially below par. In 2008, attempting to alleviate the Tribunal’s case burden, Prosecutor Jallow petitioned to transfer five cases to Rwanda’s national jurisdiction. The ICTR judges denied his request.

Although Rwanda had abolished capital punishment a year before, the possibility of life imprisonment in solitary confinement remained on the books, something that the U.N.-appointed judges could not accept. They also had “doubt about the ability of the defense to receive a fair trial” and “suspected that Rwanda’s judiciary does not have the necessary protection against political interference,” explained Roland Amoussouga, ICTR’s spokesperson.

“The ICTR claims that in Rwanda there is no justice,” Mutabingwa fired back. “But if you impute bad faith, you have to prove it.”

Would a Rwandan court really be able to deliver a verdict of ‘not guilty’ to a high-profile genocide suspect, as the ICTR has done six times? Could witnesses for the defense speak freely, without fearing violent retribution? Dissenting points of view are dealt with very harshly in Rwanda; The Economist has written that Rwanda “allows less political space and press freedom at home than Robert Mugabe does in Zimbabwe.” A 2008 law proscribing the vague crime of “genocide ideology” has been used to restrict media outlets like the BBC.

Nonetheless, suspects on trial for genocide could soon find themselves taking the stand in a Rwandan court. “I am optimistic,” said Prosecutor Jallow of the Rwandan efforts to update the country’s judicial standards. He told the Globalist that his office will soon be “renewing efforts” to transfer cases to Rwanda, “probably towards the end of this year.” Indeed, transferring cases to Rwandan jurisdiction is likely the only way the Tribunal could possibly complete its caseload on-schedule. The Tribunal’s judges, however, will be the ultimate arbiters of whether Rwanda’s judiciary is ready to accept such transfers.

Yet Rwandan officials feel that their country has been able to deliver justice better than the u.N.-mandated ICTR, and in even more difficult circumstances. While the ICTR limited its caseload to less than a hundred, the numbers of suspects tried and convicted in Rwanda so far is enormous. At one point the country’s prisons held over 125,000 people. To cope with this massive population of suspected killers, the country created a new way to deliver justice, based on a traditional Rwandan method of settling disputes.

Gacaca means “on the grass” in the Kinyarwanda language, and that is exactly where gacaca courts meet. In villages across Rwanda’s mountainous countryside, survivors come face-to-face with those who murdered their loved ones. The gacaca courts have dealt with the problem of justice and reconciliation on a massive scale; over 12,000 local tribunals have assembled, hearing over 100,000 cases. The system has its flaws. According to David Throup, professor of African studies at George Washington university, “the playing field for the hearing of these cases at a gacaca level, and even at a formal court system, is not level.” Gacaca courts, like the formal Rwandan judiciary, are thought to be biased against the accused; acquittals are rare occurrences. Said Throup: “the impartiality of the judiciary is seriously compromised.” However, while the ICTR has proven painfully slow, inflexible, and bureaucratic, “gacaca cases take hours, a day or two at the most.” The method is fast, creative, more or less efficient, and local.

Money Well-spent?

The cumulative costs of operating the Tribunal passed the $1 billion mark in 2007, averaging more than $25 million for each judgment. One reason for these huge costs is that the united Nations foots the bill for both sides of the trial proceedings. “None of the accused here pay for their own defense,” explained Dunstain Mwaungulu, who stepped down from his post as justice of Malawi’s High Court in order to help the ICTR manage its legal expenses. Each of the accused is given two legal counsels plus three support staff to help prepare their case, said Mwaungulu, as part of what he calls the ICTR’s “luxurious legal aid system.”

The lawyers and officials who work at the Tribunal are well aware of the harsh criticisms it faces: that they have worked too slowly, spent too much money, treated suspects and convicts softly, and delivered far too little. But why, they respond, would anyone expect justice to be cheap and easy? “The worse the crime, the more important it is that suspects are tried in as perfect conditions as possible,” argued defense attorney Lussiaa-Berdou. “The integrity of the idea of international justice depends on it. If you want to accuse someone of an atrocity like genocide, then you better be ready to truly prove it.”

Rwandan officials admit that the Tribunal has succeeded in some regards. The ICTR “has erased the possibility of denying the fact of the genocide,” said Mutimura. Against the background of the United Nation’s annual budget of $15 billion, perhaps a few extra billion dollars a decade is not an outrageous sum to pay for an international legal response to the Rwandan genocide. But in Rwanda, a country where the average citizen makes under $3 a day, it represents an enormous amount that could have been spent more effectively and in closer cooperation with the Rwandan government. “We have done well with what we have,” said Mutimura of his administration’s efforts to repair a country torn apart by senseless slaughter. But, as he added, “With more, we would have done better.”

For Rwanda’s post-genocide government, the time and money spent by the ICTR over the past fifteen years represents a massive wasted opportunity. The sentences of those who exterminated hundreds of thousands of Rwandans have been disturbingly lenient as well as fantastically expensive. The machinery of the international justice system moves slowly indeed, and for now, Rwandans can only watch as it grinds on.

Alex Soble is a senior in Trumbull College majoring in Ethics, Politics, and Economics and South Asian Studies. Ali Weiner is a junior History and Political Science major in Davenport College.

Article at: http://tyglobalist.org/index.php/20091013223/Focus/The-Cost-of-Closure.html